as to his letter, said it was a "mere form," and did not pretend that by the "large firm" mentioned therein the plaintiff was meant, nor did it appear that the plaintiff was in any "firm.” WIGHTMAN, J., put the credibility of Worman's evidence to the jury, who said they did not believe it. The learned Judge then held the description sufficient, reserving the point; and there was a Verdict for the defendant (a). (a) H. T. Cole got a rule nisi to enter the verdict for the plaintiff, on the grounds, (1), that the bill was not duly described, and, (2), that it should have been mentioned that the bill was in the hands of the plaintiff or some person unknown. But in T. T., the Court on argument discharged the rule, adhering to the rule that "If an insolvent state a bill in his schedule as drawn by himself on M., whercas it was drawn by M. on him, it will be for the jury to say, whether they are satisfied that the same bill was meant; and whether, if it was, they think the misdescription was by 1861. ROMULO v. ALLEN. STEVENS v. TAYLOR. 1860. Easter Term. TRESPASS, for entering the plaintiff's land and taking On a clause in a building agreement under which rent had not been paid (and not amounting to a demise), that in case of default in not completing buildings at successive pe riods, the owner shall be at liberty to re-enter and seize materials, &c., there having been continued and successive defaults, and several periods of indulgence, but no waiver of the last default, and no alteration of the builder's position to his prejudice, and no default on the part of the owner :-Held, that the owner was entitled to re-enter and seize the materials. 1860. STEVENS บ. TAYLOR. C. Pollock for the defendant. On the 2nd September, 1858, the plaintiff and defendant entered into an agreement, by which the defendant agreed that, after the plaintiff should have built twenty-two houses as specified, he would lease to him the land, and for a term of years from September 29, 1857, at a rent of 4l. for each house, and the plaintiff agreed that he would build the houses on the land to the satisfaction of the surveyor, and that he would cover in four of the houses on the 25th December next (1858), and finish the same, fit for occupation, on or before the 30th April next (1859), and cover in nine others on or before the 24th of June, 1859, and finish the same, fit for occupation, on or before the 25th December, 1859, and cover in the remaining houses on or before the 25th March, 1860; the whole of the houses, with fences, roads and drains necessary thereto, to be finished fit for occupation on the 29th September, 1860. The plaintiff to pay to the defendant such fair and proportionate sum as should be determined upon by the surveyor for constructing such principal or other drain along the whole frontage as should be directed by the defendant, and make a proper drain from each house communicating therewith. The plaintiff to have separate leases of the messuages so soon as, but not before, all of them should have been covered in, and the road and paving completed, and certified by the surveyor at a ground-rent of 41. per annum. And it was further agreed that, in default by the plaintiff before any lease was granted, or on nonpayment of the said rent or any part thereof for twenty-one days after becoming payable, or non-performance or non-observance of any of the stipulations aforesaid, then, as to any part of the ground which may not have been so demised in the meantime, it shall be lawful for the lessor to enter and take possession thereof; and this agreement, as to such part of the ground, shall thenceforth be voidable by the lessor, and all improvements, materials, chattels and effects on the ground shall be absolutely forfeited to him or them. And it was provided that time should be of the essence of the contract; that the agreement should not be construed to operate as a demise; and that, should the plaintiff not proceed regularly with the building to the satisfaction of the lessor, then it should become void, and the defendant be at liberty to re-let the land. There was a memorandum at the foot "This agreement is subject to another agreement dated the 3rd September, 1858, and it is understood that this shall be a notice that this agreement is charged to the said T. J. Taylor." The agreement of the 3rd September thus referred to was one by which any monies which might be advanced by the defendant to the plaintiff for building the houses should be a charge upon the premises, and it was added at the end, "this agreement is made to secure such money as may hereafter be due to the said T. J. Taylor, but in no other way to affect the agreement of the 2nd September, 1858." The trespass was on the 15th August, 1859, and was an entry and seizure by the defendant under the agreement first mentioned. The plaintiff was called, and from his evidence, and that of one Green, it appeared that he had been delayed for some time waiting for plans, &c., and that the defendant had not made the principal drain along the whole frontage; in consequence of which, as the house-drains could not be opened into it, he had to keep two men at work to free the sites of the houses from the water. But it did not appear that he had applied for the plans or tendered the money for the principal drain. On the 25th December, 1858, the four first houses were not, as they ought to have been according to the agree ment, covered in. But in the first week of March they were so. On the 21st March, 1859, the defendant wrote to the plaintiff that he was not satisfied with the way in which 1860. STEVENS V. TAYLOR. 1860. STEVENS บ. TAYLOR. the houses were being carried on. About this time the defendant said to the plaintiff, "Don't go on with the other nine, finish these four first," those four having, it will be observed, to be completed by the 30th April. There was a sum due for rent. On the 25th April, 1859, the defendant wrote to the plaintiff: "I give you notice that I insist on payment of the rent due, and that, unless there is a great alteration in the course of a week, and matters are put in a more satisfactory condition, I shall put the matter in my attorney's hands." On the 20th May the defendant wrote in similar terms. And, on the 31st June, the defendant's attorney wrote to him to the effect that the first four houses were to have been finished by the 30th April, and nine more to be covered in by the 24th of June, which had not yet been commenced; that, therefore, the plaintiff had forfeited all right to any lease; and that, unless security was given for the proceeding with the work, the defendant would avail himself of the forfeiture committed and take possession of the land. No such security was given, and no rent having been paid under the agreement, on the 15th August the defendant took possession of the land and some building materials thereon, which was the trespass complained of. C. Pollock contended that there was no case, as the plaintiff had no right of possession at the time of the defendant's entry. G. Francis contended that there had been no right of forfeiture, as the default of the plaintiff had been caused by the defendant, or had been waived. WIGHTMAN, J., was of a contrary opinion, and directed a (a) A rule nisi was obtained for setting this nonsuit aside, but on Nonsuit (a). argument, in T. T., the Court were clearly of opinion that the nonsuit Hilary Term. TRESPASS, for breaking and entering a shed of the Where the plaintiff de plaintiff and pulling down a wall, and assaulting the rived title to plaintiff. Pleas: 1. Not guilty. 2. Not possessed. the locus in quo under a lease from the owners, within the last twenty years (wit any reservation of a right of way), and the defendant had within that 3. That the place was the freehold of certain persons, by whose command the defendant committed the trespasses. 4. That the defendant was possessed of a messuage, the occupiers of which for twenty years enjoyed, as of right, time occup a way on foot, with horses and carriages, from a public part of the highway, over the said close of the plaintiff to the messuage, &c., justifying the removal of the shed and wall as obstructing the way. 5. Similar plea, of forty years. said 6. A right of way, by prescription, in the owners of adjoining premises, for their tenants; the defendant justifying as tenant of those premises. locus, and not set up a Replication, to the third plea, that the persons therein. mentioned demised to one Shove the shed and close for thirty-one years, from June, 1843; that in March, 1853, Shove demised to Couldery for twenty-one years; and that in July, 1854, Couldery demised to the plaintiff for nineteen years, by virtue of which he was possessed until the . time of the trespasses. Issue. |